In the matter of Mashinini v Barrel & Beef restaurant, CCMA Arbitration FS1420 the question of whether a dismissal was fair or not was the issue in the Arbitration Hearing.

In the above CCMA arbitration case of Mashinini v Barrel & Beef restaurant; the Applicant, Mashinini, had been dismissed by the Respondent restaurant employer after an altercation.

In his evidence the primary Respondent witness testified in the arbitration hearing that he was on the till, as there had been a number if till shortages, when he overheard the Applicant shouting at another employee.

He went to the kitchen, where he saw the Applicant pointing a finger in the face of a co-worker and he got in between them to defuse the situation.

The Applicant then threatened and pushed him, whereafter, as he was the superior. He informed the Applicant that he could back his stuff and leave.

The applicant in his evidence testified that the employee that he had originally confronted had pushed him and hit him with a wooded bill holder, due to a customer having complained about his service as a waiter. The applicant continued that the Respondent’s witness had then appeared and had used his knee to hit him in his private parts; so he had pushed him away. On advising the Respondent’s manager that he intended opening a case against him; he was told to leave.

The Commissioner hearing the arbitration found the Applicant to be a reliable witness and further found that not only had the Applicant been unfairly dismissed but that he had also been assaulted by two members of the Respondents staff in the process.

The commissioner found that the applicant’s dismissal had been both substantively and procedurally unfair.

In the result he ordered that the respondent pay the applicant the maximum amount of compensation allowed namely 12 months’ salary and this was the amount of his order in the Arbitration hearing.

Bear in mind that as in all court matters; each case is always judged on its own facts.

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